Lint v. Chisholm

• Decision Date: 17 June 1981
• Citation: 121 Cal.App.3d 615,177 Cal.Rptr. 314
• Court: California Court of Appeals Court of Appeals
• Parties: Sandy LINT, Plaintiff and Respondent, v. C. CHISHOLM, Defendant and Appellant. Civ. 22764.

Page 314

177 Cal.Rptr. 314

121 Cal.App.3d 615

Sandy LINT, Plaintiff and Respondent, v. C. CHISHOLM, Defendant and Appellant.

Civ. 22764.

Court of Appeal, Fourth District, Division 1, California.

June 17, 1981.

As Modified July 14, 1981.

C. Chisholm, in pro. per

Legal Aid Soc. of San Diego, Inc., Jacqueline Valenzuela, Dennis E. Holz and Charles Wolfinger, San Diego, for plaintiff and respondent.

WORK, Associate Justice.

C. Chisholm appeals an order denying his motion to vacate a default judgment (CODE OF CIV.PROC., S 473 )¹. He asserts multiple grounds: surprise, excusable neglect, absent his stipulation the temporary judge lacked authority to enter the default judgment, variance between the judgment and minute order, variance between the relief granted and that prayed for, and error in the court's failure to dispose of his cross-complaint or calculate the factors argued in it. Chisholm, a self-represented lawyer, also attacks the denial of his motion for summary judgment.

BACKGROUND

In August 1976, Sandy Lint filed a complaint with the municipal court claiming conversion, breach of contract and fraud. Following Chisholm's unsuccessful summary judgment motion, she filed an amended complaint. Chisholm answered and cross-complained.

Chisholm then removed the case to superior court, and was ordered to pay the transfer fees. Consistently, with his utter disregard for other procedural rules of court, he refused to pay them for over two years. After numerous attempts to contact him proved unsuccessful, Lint, who originally filed as an indigent, paid the fees herself. The case was transferred in November, 1979.

Lint filed an at issue memorandum with the superior court, mailing a copy to Chisholm. Trial was set for March 14, 1980 and notice mailed to both parties at the addresses listed with the court clerk. Chisholm claims he never received actual notification before trial, explaining the closing of his business and filing of a dissolution action by his wife during this time period disrupted his regular mail service. Admittedly, he did not notify the clerk of any change of address. He did not appear at trial. Upon stipulation by Lint the matter was tried by a temporary judge. After a hearing at which Lint testified and the appointed judge examined the papers, documents and pleadings in the case, a judgment was prepared granting relief as prayed. It was signed and entered April 1, 1980.

Chisholm's motion to vacate the default and set aside judgment on the above grounds was denied.

DISCUSSION

A motion to vacate a default and set aside judgment (§ 473) "is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse ... the exercise of that discretion will not be disturbed on appeal." (City Bank of San Diego v. Ramage, 266 Cal.App.2d 570, 579, 72 Cal.Rptr. 273; see Outdoor Imports, Inc. v. Stanoff, 7 Cal.App.3d 518, 522, 86 Cal.Rptr. 593; Weitz v. Yankosky, 63 Cal.2d 849, 854, 48 Cal.Rptr. 620, 409 P.2d 700.) Moreover, all presumptions will be made in favor of the correctness of the order, and the burden of showing abuse is on the appellant. (Baratti v. Baratti, 109 Cal.App.2d 917, 921, 242 P.2d 22.)

1. Chisholm contends the trial court erred in rejecting his claim of surprise and excusable neglect (§ 473, supra.) He argues overwhelming domestic problems resulted in his inability to receive mail regularly during the period in which notice was sent. The events he describes do not constitute surprise or excusable neglect under section 473. ²

"The 'surprise' contemplated by section 473 . . . is some condition or situation in which a party is unexpectedly placed to his injury, without any fault of his own, under circumstances which he was not reasonably called upon to anticipate and which ordinary foresight could not have guarded against." (Tammen v. County of San Diego, 66 Cal.2d 468, 478, 58 Cal. Rptr. 249, 426 P.2d 753; emphasis added.)

Excusable neglect is "that neglect which might have been the act of a reasonably prudent person under the same circumstances." (Baratti v. Baratti, supra, 109 Cal.App.2d 917, 921, 242 P.2d 22; Tammen v. County of San Diego, supra, 66 Cal.2d 468, 478, 58 Cal.Rptr. 249, 426 P.2d 753.)

Chisholm did not show (1) his failure to notify the court of his address change, or alternatively to otherwise adequately arrange for mail delivery, was the act of a reasonably prudent person under the same circumstances; or (2) the non-receipt occurred "without any fault of his own ...."

Chisholm, a law school graduate licensed to practice in two jurisdictions (but not California), is a member of the United States Supreme Court Bar and United States Tax Court. Moreover, during the two-month period between the mailing of notice and the date of trial he was a party to at least seven other lawsuits in San Diego County. He was aware of his duty to inform the court of any change of address, and his failure to do so does not enable him to claim lack of notice. (See Bethlahmy v. Customcraft Industries, Inc., 192 Cal.App.2d 308, 310, 13 Cal.Rptr. 310.)

There is no abuse of discretion.

2. Chisholm attacks the temporary judge's authority to act in the present cause without a stipulation from him as a party litigant.

The California Constitution, article VI, section 21 reads:

"On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause." (Emphasis added; see also Cal.Rules of Court, rule 244.)

Chisholm contends he is a "party litigant" despite his failure to appear on the date set for trial. He improperly relies, inter alia, on Rooney v. Vermont Investment Corp., 10 Cal.3d 351, 110 Cal.Rptr. 353, 515 P.2d 297. There, a stipulation for settlement was entered into between the parties, providing that, upon breach, plaintiffs could give notice of default and file a declaration with the court stating the fact of default and balance due. The stipulation allowed the court to enter judgment for the entire remaining balance. Eventually, without sending of notice, judgment was entered against defendants, without their being afforded an opportunity to be heard. The Supreme Court held, since proper notice was lacking, defendants could not effectively waive their right to be heard in opposition to the entry of judgment, and the temporary judge could not act without both parties' stipulation. Here, however, notice of trial was properly served.

Chisholm was indeed a "party litigant" throughout the entire pretrial proceedings, but he forfeited his status by failing to appear at trial after proper service of notice had been mailed to him. (Cf. Goya v. P.E.R.U. Enterprises, 87 Cal.App.3d 886, 151 Cal.Rptr. 258.)

More on point is Bill Benson Motors, Inc. v. Macmorris Sales Corp., 238 Cal.App.2d Supp. 937, 944, 48 Cal.Rptr. 123, where, after filing an answer and cross-complaint, the defendant failed to appear at trial. The court concluded "the phrase 'parties litigant ...' does not include parties ... who wilfully remain away from the trial.... (T)here is no injustice (in such a case) in ruling that they waived their rights to object to the appointment of ... a judge pro tempore...."

In Sarracino v. Superior Court, 13 Cal.3d 1, 118 Cal.Rptr. 21, 529 P.2d 53, the Supreme Court cited Benson favorably holding, where a petitioner defaults by failing to appear at a hearing the "stipulation of the parties litigant" required by article VI, section 21 of the California Constitution may be entered into by the other party alone. "Accordingly, petitioner was not a party litigant, and the stipulations executed by the applicants ... were sufficient to empower the commissioner to act as a temporary judge." (Sarracino v. Superior Court, supra, at p. 10, 118 Cal.Rptr. 21, 529 P.2d 53.)

The stipulation required by the constitutional provision is that "of" and not "between" the litigants to an action. (Barfield v. Superior Court, 216 Cal.App.2d 476, 479, 31 Cal.Rptr. 30; Sarracino v. Superior Court, supra, 13 Cal.3d 1, 10, 118 Cal.Rptr. 21, 529 P.2d 53; cf. Toby v. Superior Court, 8 Cal.App.2d 32, 47 P.2d 338.) There was no error.

3. Chisholm next objects the judgment did not follow the minute order, the relief granted exceeded that prayed for and the judgment failed to dispose of his cross-complaint or consider the factors argued in it. He cites no authority for his propositions and fails to discuss two of the contentions at all. Indeed, his only reference to the variances between the judgment and minute order, and between the relief granted and that prayed for is found in heading form.

His reticence to address the contentions is understandable, however, as variance between the prayer of a complaint and the relief granted is proper if warranted by the evidence, and an answer has been filed. (Lee v. Ski Run Apartments Associates, 249 Cal.App.2d 293, 295, 57 Cal.Rptr. 496; Sears, Roebuck and Co. v. Blade, 139 Cal.App.2d 580, 592, 294 P.2d 140; § 580.) ³

Any variance which existed between the judgment and minute order has been corrected by amendment pursuant to Lint's motion to correct clerical errors in the clerk's minute order. (See § 473; Shellhaas v. Petrolane Ltd., 98 Cal.App.2d 171, 174, 219 P.2d 797; Estate of Careaga, 61 Cal.2d 471, 39 Cal.Rptr. 215, 393 P.2d 415.) The amendment likewise disposes of Chisholm's cross-complaint. ⁴

4. Finally, Chisholm's motion for summary judgment was correctly denied. "(S)ummary judgment is proper only if there be no triable issue of fact." (Brewer v. Home Owners Auto Finance Co., 10 Cal.App.3d 337, 341, 89 Cal.Rptr. 231; § 437c.) "The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are...